As commercial activities on the Moon and elsewhere in space ramp up, there’s a limited window to address the protection of our “common human heritage.” (credit: NASA)

Our fear of “heritage” imperils our future

by Michelle L.D. HanlonMonday, March 12, 2018

Say the word “heritage” out loud in a room full of commercial space executives and engineers and you’d think you’d unleashed an offensive stream of profanity. Eyes glaze over, people shake their heads, or they smile and nod while looking for an exit.

It’s easy (and quite understandable) to see why attaching the principle to outer space would cause a tremendous amount of consternation in the commercial space sector.

Sitting by itself, the word “heritage” is quite innocent and has a very simple meaning. It is property that descends to an heir, or anything, including a tradition, that that is passed down by the preceding generation. Now enter the lawyers. Bookend “heritage” with the words “common” and “humankind” and complication ensues. The phrase “common heritage of humankind” entered the lexicon of international law surrounded by a deep ideological divide, essentially between developed and developing states. Ambassador Arvid Pardo of Malta is credited with introducing the principle of common heritage of humankind as a system of resource management in a 1967 speech to the United Nations during the negotiation process for the Law of the Sea Treaty.

But since then there has been little consensus as to what elements the principle embodies. Writing in 2012, John Noyes identifies six features “often associated” with the concept of “common heritage of humankind.” These include:

a prohibition of acquisition of, or exercise of sovereignty over, the area or resources in question;

the vesting of rights to the resources in question in humankind as a whole;

reservation of the area in question for peaceful purposes;

protection of the natural environment;

an equitable sharing of benefits associated with the exploitation of the resources in question, paying particular attention to the interests and needs of developing states; and

governance via a common management regime.

It’s easy (and quite understandable) to see why attaching the principle to outer space would cause a tremendous amount of consternation in the commercial space sector, particularly to those companies investing vast amounts of research and money into proposals to mine the Moon or an asteroid. The United States remains steadfast in its disinclination to consider space the “common heritage of humankind.” Most recently, National Space Council Director Scott Pace reiterated:

outer space is not a “global commons,” not the “common heritage of mankind,” not “res communis,” nor is it a public good. These concepts are not part of the Outer Space Treaty, and the United States has consistently taken the position that these ideas do not describe the legal status of outer space. To quote again from a U.S. statement at the 2017 COPUOS Legal Subcommittee, reference to these concepts is more distracting than it is helpful. To unlock the promise of space, to expand the economic sphere of human activity beyond the Earth, requires that we not constrain ourselves with legal constructs that do not apply to space.

And he’s right. The Outer Space Treaty specifically states that the exploration of space is “the province of all mankind.” And while the Moon Agreement does explicitly state that space “and its natural resources are the common heritage of mankind,” that Agreement has been ratified by only 17 nations and cannot be considered to embody customary international law.

However, the debate about how to treat property in space is far from over—some would say it has yet to begin in earnest. And this confusion and uncertainty threatens our common human heritage.

Yes, that’s correct. Append the words “common human” before the word “heritage” and an entirely different meaning is produced. As articulated by the United Nations Educational, Science and Cultural Organization, common human heritage embraces the concept that cultural property belonging to any people is the cultural heritage of all humankind, “since each people makes its contribution to the culture of the world.”

What, we ask, can be of more “outstanding universal value” than our first crewed and robotic landing sites on the Moon?

The World Heritage Convention, which recognized that parts of cultural heritage are of “outstanding interest and therefore need to be preserved as part of the world heritage of [hu]mankind” establishes a sovereignty-based system of collective protection for terrestrial sites of “outstanding universal value.” The Convention has 193 signatories, and every day we strengthen our connection to the past, and each other. by preserving and memorializing everything from the evidence of our common ancestors’ first bipedal footsteps in the Ngorongoro Conservation Area in Tanzania to the Struve Arc Chain, a system of survey triangulations spanning ten countries which produced the first accurate measurement of the meridian.

What, we ask, can be of more “outstanding universal value” than our first crewed and robotic landing sites on the Moon?

In his article “The Ethics of Treading on Neil Armstrong’s Footprints,” D.H.R. Spennemann sketches human evolution as a sequence of key psychological and technological developments, there are critical stages: overcoming the fear of fire innate to animals and developing control of it as a tool (300,000 years ago), overcoming the fear of stretches of open water innate to primates (60,000 years ago), transmission of complex thought by means of language (30,000 years ago), and becoming cognizant of not being controlled by nature but of our own ability to control it (9,000 years ago).

As Spennemann notes, “having humans leave this planet and step on the Moon ranks among these key developments.”

The world changed irrevocably on July 20, 1969. Six hundred million people—one-sixth of the human population at the time—watched as one of their own set foot on the Moon. That footstep, and each of the robotic landings that preceded and followed it, marks an achievement unparalleled in history, and one that is common to all humankind. Our steps on the Moon are made on the foundation of centuries of science and engineering theories and tests developed around the world. They memorialize the work thousands of dedicated engineers and scientists who worked without individual recognition. And they represent a hope of peace for all humankind. Hopes that were expressed by 74 nations and included on a disc, about the size of a quarter, left at Tranquility base.

The lunar landing sites are the ultimate heritage sites, both in terms of significance to humanity as a whole and in terms of preservation. Not only do we have the first sites, we also have a record of all the movements of our Moon pioneers, both human and robotic, preserved in the dust. The absence of a lunar atmosphere of any note means that all foot- and track-prints of the astronauts and rovers are preserved, providing a total record of the pioneering phases of human exploration of outer space. They illustrate exactly what happened, not what someone thinks happened. No site on Earth is this pristine.

But what fate will befall these sites as we race back to the Moon? They cannot be included in the World Heritage system: first, they are not of this world; and second, the World Heritage system requires sovereign nomination. And while there remains heated argument about whether space is the “common heritage of humankind” there is no disagreement over the validity of Article II of the Outer Space Treaty which states that no claim of sovereignty may be made in space.

Nor are the landing sites protected under international law. Current space treaties do not cover historic preservation or cultural heritage. Sure, Article VIII of the Outer Space Treaty and the Return and Rescue Agreement confirm that all space objects remain the possession of the State to whom they belong. If found, they must be returned. This does not protect the sites themselves, or the artifacts that scientists, engineers, and archaeologists would like to analyze in situ. Article III of the Liability Convention states that entities can be liable “in the event of damage being caused to a space object,” but how is damage defined in respect of an already nonoperational space object?

And what about the sites?

As we know from history, a trickle will soon become a rush. We have the unique opportunity to protect our heritage before it is vandalized or destroyed. Let’s take advantage of this time to do it.

Article XII of the Outer Space Treaty suggests that states retain some control over their “stations, installations, equipment and space vehicles” but that such sites shall be open to others on the basis of “reciprocity.” But taken literally and to the extreme, this could mean that a state can essentially claim sovereignty over any area in which its equipment is strewn. Surely this is not the intent of the law?

Finally, Article IX of the Outer Space Treaty requires that parties conduct all their activities in space with “due regard” to others. But “due regard” has never been defined. Do we really want to test the theory on our heritage during a time when scofflaws seem on the rise? In December 2017, not only did an individual snap the thumb off a 2,200-year-old Chinese terracotta warrior that was on exhibit in the United States, he bragged about it on social media! Imagine how many such acts of thoughtless vandalism occur? Clearly, “due regard” will not preserve our history.

Currently there are a comparative trickle of companies and nations with their sights on returning to the Moon. India expects to send a rover later this year, while Astrobotic, Moon Express, and PTScientists each hope to be the first private company to land a robot on the Moon. And humans will return within the next decade. But, as we know from history, a trickle will soon become a rush. We have the unique opportunity to protect our heritage before it is vandalized or destroyed. Let’s take advantage of this time to do it.

For All Moonkind, Inc., is the only organization in the world focused on creating an effective system to manage our common human heritage in outer space. As a direct result of our efforts, the concept of creating a program to identify universal heritage sites in space was included in a draft resolution for consideration by the United Nations Committee on the Peaceful Uses of Outer Space Science and Technology Subcommittee in January 2018. Unfortunately, the subcommittee meeting concluded without agreement on the matter. While perhaps understandable given the framework of the United Nations, it is nevertheless unacceptable to leave our heritage in limbo.

We challenge the international community—sovereign nations, national space agencies and commercial entities—to join us in addressing the void left by current space law in respect of human heritage in space. Our entirely volunteer team of space lawyers and policymakers are working to develop reasonable and practical protocols that will balance development and preservation and include systems to select, manage, and study relevant sites. In so doing, we seek to promote the exploration and development and open the debate on equally pressing issues of property and resource extraction.

For All Moonkind was recently named a “Top Ten Innovator” in space by Fast Company magazine. This award underscores what we all know to be true: we cannot innovate if we do not recognize, share, and memorialize our own heritage. Preservation is innovation. It is also the first solid step to human development, in this case, in the human migration to the stars. Let’s not let the word “heritage” scare us away. Because while we may not agree on the “common heritage of humankind,” history proves we can agree on our “common human heritage.”

Michelle L.D. Hanlon is a co-founder of For All Moonkind, Inc. and a founding partner of ABH Aerospace. A business attorney with more than 25 years of experience, she earned her J.D. magna cum laude from the Georgetown University Law Center and her B.A. in Political Science from Yale College. She received her Master of Laws in Air and Space Law from McGill University, where the focus of her research was on commercial space and the intersection of commerce and public law.